Death of Judge Tuttle: A Hero Of Desegregation

By Jack Bass, The Atlanta Journal and Consitution, pg.
A–09, 25 June 1996

One of Judge Elbert Tuttle's earliest memories involved sitting as
a small child with his mother on the front porch of their home in
Washington. Across the road, a black woman waited for a streetcar. One
streetcar passed her by. Then another.

Little Elbert watched his mother step inside the house, put on her
hat and then walk across the street and stand beside the woman. The next
streetcar stopped, and the waiting woman boarded. His mother returned to
the front porch, without saying a word. The boy never forgot the lesson
about responding to injustices.

He told me the story a decade ago during an oral history interview
for the 11th Circuit Historical Society. After a full day with Judge
Tuttle, then in his late 80s, what came through was the modest grace and
pure integrity that permeated his life: He was a battlefield hero, a
professional and civic leader, a sportsman, a family man and a judicial
giant.

A few years later, Tuttle remarked that the key to longevity was
being married to the same woman for 70 years. When Sara Tuttle died last
year, they had been married for 75 years.

Once at a judicial conference cocktail party, a lawyer who had
drunk one too many learned that Judge Tuttle had never tasted alcohol and
asked him why. Tuttle looked him in the eye and responded in his calm, even
voice, "Because my mother told me not to."

She also told him not to smoke. When he died Sunday, less than a
month before his 99th birthday, his only known weakness was a sweet tooth:
Chocolate, peppermints and apple pie topped with ice cream were his
favorites.

When Tuttle was chief judge of the old 5th District, which
stretched from Savannah to El Paso, Texas, and covered six states of the
Confederacy, Chief Justice Earl Warren said of him: "Since the day he
assumed office, the 5th Circuit has been in the very eye of the storm."

Under Tuttle's leadership, the 5th Circuit Court of Appeals became
a trailblazing court that transformed the bare-bones decision of the
Supreme Court's school desegregation decision into a broad mandate for
racial justice.

"Those who think Martin Luther King desegregated the South don't
know Elbert Tuttle and the record of the 5th Circuit Court of Appeals,"
former New York Times writer Claude Sitton told me during research for my
book "Unlikely Heroes." After the tenuous agreement that ended the turmoil
in Birmingham in 1963, when the city filled its cells with black teenagers
who demonstrated against segregation and King wrote his epic "Letter From
the Birmingham Jail," a school board appointed by outgoing City
Commissioner Eugene "Bull" Connor expelled or suspended more than 1,000
students. That meant hundreds of black high school seniors wouldn't
graduate.

A federal trial judge in Birmingham upheld the school board's
directive. Federal appeals courts routinely hear cases as three-judge
panels, but Tuttle sat alone that night in Atlanta to hear an appeal. He
believed it imperative for the court to act quickly. Other than lawyers for
the school board, the NAACP Legal Defense Fund and the Justice Department,
only Sitton was present.

In the morning newspaper, Sitton reported that at the hearing,
Tuttle's "expression and tone reflected anger and distress over the
treatment of the students." The judge cited a recent Supreme Court ruling
clearly indicating the students had been arrested illegally. He ordered
them readmitted at once and directed school board lawyers to get the word
out over radio and television the next morning before classes.

Sitton reported that Tuttle's order "removed the threat that
Negroes would resume mass protests such as those that brought a racial
crisis marked by two riots and the bombings of a Negro home and a motel."

For federal judges, the oath of office requires that they
"administer justice." To Tuttle and those colleagues on the 5th Circuit who
shared his views a like him, mostly Republicans appointed by President
Eisenhower before the party embraced the racial "Southern strategy" a
justice became defined as the absence of injustice.

Judges, of course, don't bring the cases they hear, a point Tuttle
clearly recognized. "We became what I consider a great constitutional
court," he once told me, "and I think we largely have to thank the black
plaintiffs for that."

His legacy is one of leadership in transforming the American South,
the federal courts interacting with the thrust of the civil rights movement
to make real the promise of legal equality through a process that history
may come to view as Judicial Reconstruction.

Jack Bass, a journalism professor at the University of Mississippi
and author of "Unlikely Heroes" and "Taming the Storm," is a visiting
research scholar at the Emory University School of Law.

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